M.R. Ravindran v. Peethambaran K.A and Pratheesh

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 11[TH] DAY OF AUGUST 2023 / 20TH SRAVANA, 1945 ``` ## `OP(C) NO. 1661 OF 2023` ``` IN OS 107/2016 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM ``` ## `PETITIONER:` ``` M.R.RAVINDRAN AGED 85 YEARS S/O. RAVUNNI, VELAMPARAMBIL HOUSE, EROOR WEST P.O., NADAMA VILLAGE, KANAYANNUR TALUK, TRIPUNITHURA, ERNAKULAM DISTRICT., PIN – 682306 ``` ``` BY ADVS.K.N.ABHILASH SUNIL NAIR PALAKKAT RISHI VARMA T.R. RITHIK S.ANAND SREELAKSHMI MENON P. ``` ## `RESPONDENTS:` ``` 1PEETHAMBARAN K.A AGED 64 YEARS SNRA-204, VELAMPARAMBIL HOUSE, EROOR WEST P.O.,TRIPUNITHURA, PIN – 682306 ``` ``` 2PRATHEESH AGED 34 YEARS S/O.PEETHAMBARAN KA, SNRA-204, VELAMPARAMBIL HOUSE, EROOR WEST P.O., TRIPUNITHURA ., PIN – 682306 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.1661/2023 ``` ``` -:2:- ``` Dated this the 11[th] day of August,2023 ## **J U D G M E N T** The original petition is filed assailing Exts P9 & P10 orders passed by the Court of Principal Munsiff, Ernakulam(court below), in I.A.Nos.12 & 13/2023 in O.S.No.107/2016. 2. The antecedent facts for the determination of the original petition are: - (i) The petitioner has instituted Ext P1 plaint, against the respondents, for a decree of `.` - permanent prohibitory injunction - (ii)The suit is resisted by the respondents through Ext P2 written statement. The respondents have also raised a counter claim,inter alia, to restrain the petitioner from trespassing into the counter-claim ‘A’ property. (iii) The parties went to trial. - (iv) After the second respondent was examined as DW1, the respondents filed a witness list and ``` O.P.(C)No.1661/2023 ``` ``` -:3:- ``` consequently, examined the Village Officer, Nadama Village, as DW4. The said witness produced the Basic Tax Register[BTR] of Re-Sy. No.160/5, which was marked as Exts B1 & B2, and deposed that Re-Sy. No.160/5 is a ‘puramboke land’. - (v) The specific case of the petitioner in Ext P1 plaint is that, he is the absolute owner in possession of 8.80 Ares in Sy.No.160/14 (Old Sy. No.627/1) of Nadama Village, covered by Ext A1 Document No.238/1968 of the SRO, Thripunithura, Ext A2 partition deed and Ext A3 Will. - (vi) There is a glaring ambiguity in the identity of the property in the BTR produced by DW4. - (vii) In order to remove the cloud created by the evidence of DW4, the petitioner filed I.A.No.12/2023 (Ext P7), to conduct a survey commission and I.A.No.13/2023(Ext P8), to adduce additional evidence. ``` O.P.(C)No.1661/2023 ``` ``` -:4:- ``` (viii)The court below, by the impugned Exts P9 & P10 orders, has rejected Exts P7 & P8 applications. - (ix) Exts P9 & P10 are ex-facie erroneous and illegal. Hence, the original petition. 3. Heard; Sri. Sunil Nair Palakkat, the learned counsel appearing for the petitioner on admission. 4. The question is whether there is any illegality in Exts P9 & P10. 5. The suit is filed for injunction simpliciter. 6. Indisputably, the trial in the suit is complete. It is after the cross-examination of DW4, that the petitioner has filed Ext P7 application for conducting a survey commission and Ext P8 application to adduce additional evidence. 7. In **Madhavan v. Narayanankutti & Others** [2019 (4) KHC 454] this Court has categorically held that in a suit for injunction simpliciter, there is no ``` O.P.(C)No.1661/2023 ``` ``` -:5:- ``` necessity to conduct a survey commission. 8. The court below, after appreciating the rival pleadings in Ext P7 application has concluded that the petitioner's sole intention to conduct a survey commission at the present stage of the suit is only to protract the culmination of the suit. As the suit is of the year 2016, and the trial is completed, I concur with the finding of the court below in Ext P9 order. I do not find any error in Ext P9 order warranting interference by this Court. 9. Along with Ext P7 application, the petitioner also filed Ext P8 application, to re-open the evidence and to adduce additional evidence. 10. Order 18 Rule 17 of the Code of Civil Procedure, 1908(in short, ‘Code’), confers unbridled discretionary power on the court, at any stage, to re-call any witness who has been examined and put questions to the said witness. ``` O.P.(C)No.1661/2023 ``` ``` -:6:- ``` 11. In the case at hand, it is after the examination of DW4, that the petitioner has filed Ext P8 application for the purpose of adducing additional evidence, principally to discredit the evidence of DW4 and Exts B1 and B2. 12. In Ext P1 plaint, the petitioner has clearly described that the plaint scheduled property has an extent of 1.5 cents covered by Document No.237/1968 of Thripunithura SRO. 13. It is trite, in a suit for injunction simpliciter, the onus of proof is on the plaintiff that he is in possession of the plaint scheduled property over which he aspires to get a decree of injunction. 14. It is after the respondents have summoned and examined DW4, who has produced and proved Exts B1 and B2, that the `petitioner` desires to re-open the evidence and let in additional evidence. The attempt of the petitioner is nothing; but fill in the ``` O.P.(C)No.1661/2023 ``` ``` -:7:- ``` lacuna. The court below, after appreciating the rival pleadings, has rightly concluded that there is no necessity to re-open the evidence as prayed for in Ext P8 application. Moreover, the Code does not permit a party to let in additional evidence after the evidence is closed. 15. In **Waryam Singh and another vs. Amarnath and another** [AIR 1954 SC 215], **Shalini Shyam Shetty and another vs. Rajendra Shankar Patil** [ (2010) 8 SCC 329], **M/s.Garment Craft vs. Prakash Chand Goel** [(2022) 4 SCC 181] and a plethora of precedents, the Hon'ble Supreme Court has delineated the powers of the High Courts under Article 227 of the Constitution of India. It is well settled, the power conferred under the said Article is to keep the courts of District Judicature/Tribunals within their bounds of authority and to see that they do their duty as expected of them in a legal manner. The ``` O.P.(C)No.1661/2023 ``` ``` -:8:- ``` exercise of power is restricted to the cases of serious dereliction of duty and flagrant violation of fundamental principles of law and justice. However, the said power is not meant to be indiscriminately exercised and to correct mere errors of the Courts/Tribunals. 14. On an overall consideration of the pleadings and materials on record, after perusing Exts P9 & P10 orders, I do not find any illegality in the said orders warranting the exercise of the power of superintendence of this Court. The original petition is sans substance and merits and is consequentially dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/11.08.23 //True copy// P.A.To Judge ``` O.P.(C)No.1661/2023 ``` ``` -:9:- ``` ## `APPENDIX` ``` PETITIONER EXHIBITS EXHIBIT -P1THE TRUE COPY OF THE AMENDED PLAINT OS NO. 107/2016 DATED 14.12.2021 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT ERNAKULAM ``` ``` EXHIBIT -P2TRUE COPY OF THE WRITTEN STATEMENT ALONG WITH THE COUNTER CLAIM DATED 07.06.2016 IN OS NO 107/2016 ON THE FILES OF PRINCIPAL MUNSIFFS COURT ERNAKULAM ``` ``` EXHIBIT -P3TRUE COPY OF THE SALE DEED NO. 237/1968 OF SRO THRIPUNITHURA ``` ``` EXHIBIT-P4TRUE COPY OF THE PARTITION DEED NO. 425/1985 OF THE SRO THRIPUNITHURA ``` ``` EXHIBIT -P5TRUE COPY OF THE WILL NO. 16/1985 OF THE SRO THRIPUNITHURA DATED 18.02.1985 ``` ``` EXHIBIT -P6TRUE COPY OF THE LAND TAX RECEIPT NO. KL07020517269/2022 DATED 20.10.2022 ISSUED BY VILLAGE OFFICER, NADAMA IN FAVOUR OF THE PETITIONER ``` ``` EXHIBIT -P7TRUE COPY I.A NO. 12/2023 IN O.S NO. 107/2016 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT ERNAKULAM ``` ``` EXHIBIT -P8TRUE COPY OF I.A NO. 13/2023 IN O.S NO. 107/20160 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT ERNAKULAM ``` ``` EXHIBIT -P9TRUE COPY OF THE ORDER IN I.A NO. 12/2023 IN O.S NO. 107/2016 DATED 26.07.2023 OF THE PRINCIPAL MUNSIFF'S COURT ERNAKULAM ``` ``` EXHIBIT -P10TRUE COPY OF COMMON ORDER IN I.A NO. 11/2023 AND I.A NO. 13/2023 IN O.S NO. 107/2016 DATED 26.07.2023 OF THE PRINCIPAL MUNSIFF'S COURT ERNAKULAM ``` ``` RESPONDENT’S EXHIBITS: NIL ```